In July, the Department of Justice (DOJ) added two new requirements for states and local governments to receive federal Edward Byrne Justice Assistance Grants (Byrne JAG) for law enforcement funding. In response, the city of Chicago sued Attorney General Jeff Sessions, arguing that these new requirements and another requirement are unlawful and/or unconstitutional.

Now, an Illinois federal district court has granted Chicago’s request for a nationwide preliminary injunction — temporarily disallowing DOJ from imposing the two new requirements.

Congress created the Byrne JAG program in 2005 to provide flexible funding for state and local police departments. In April 2017, DOJ required Chicago (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

In July 2017 DOJ added a “notice” and an “access” requirement to receive Byrne JAG funds. Recipients were required to (1) provide 48 hours advance notice to the Department of Homeland Security (DHS) regarding the scheduled release of “aliens” and (2) allow access to correctional or detention facilities to meet with “aliens” and inquire about their right to be in the United States.

The new requirements violate Chicago’s Welcoming City policy, which prohibits city employees from responding to Immigration and Customs Enforcement (ICE) inquiries about custody status or release date and allowing ICE to conduct investigations in city facilities about immigration status, except if a detainee is suspected or convicted of a serious crime.

Regarding the new conditions, the only way the Attorney General could lawfully add them is if Congress authorized the Attorney General to do so. The Byrne JAG statute explicitly grants the Attorney General only “limited” authority which does not include adding new substantive conditions. Sessions’ attempt to point to statutory language applying to other DOJ grant programs granting the Assistant Attorney General authority to place conditions on grants was to no avail.

Chicago made two arguments regarding Section 1373, both of which the court rejected.

The statutory language of the Byrne JAG program states that applicants must comply with “all other applicable Federal laws.” Chicago argued that this only includes the “narrow body of law governing federal grant-making,” which does not include Section 1373. According to the court, “’all other,’ implies a broader meaning than that tolerated by the City’s interpretation. Furthermore, if Congress intended to have the applicant only certify compliance with a limited body of Federal grant-making law, it could have so stated.”

Finally, Chicago argued that Section 1373 violates the Constitution’s Spending Clause by allowing the federal government to control the actions of state and local government employees—more specifically by making them provide immigration status information to ICE. The court disagreed with this characterization of Section 1373 stating:

Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. This distinction is meaningful. Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.

The court did acknowledge that Section 1373 would prevent a local government from disciplining an employee who spent time assisting with federal immigration enforcement which practically limits the ability of states and local governments to decline to participate in federal immigration enforcement. But to date Supreme Court cases have held that only “affirmative demands” on states and local governments violate the Tenth Amendment.

Chicago and Sessions may both appeal the court’s ruling in this case. San Francisco and California have also sued Session over the two new grant conditions.

About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.